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Canada, without being sure precisely how to proceed, is trying to do something with aboriginal peoples in its midst that no other country in the world is attempting.
The effort involves taking the principles and statements of the Royal Proclamation of 1763 about fair treatment of natives and respect for their rights and updating and giving practical effect to those ideals for the 21st century.
Necessarily, this is a complex task in today’s world, since aboriginals account for a small fraction of Canada’s population (perhaps 4 per cent), compared with their majority position in the mid-to-late 18th century in the territory we now call Canada.
Almost 60 per cent of First Nations communities have fewer than 1,000 persons, but that description misleads since in many cases members have left their reserves or traditional areas. That these “nations” number in the hundreds and are scattered across most of Canada means, among other practical things, that they have – and historically have had – little in common one with the other. As a result, they are always going to struggle, whatever their “title” to land and other aboriginal rights, to deliver what they demand: self-government.
Canada has only the vaguest idea of how to marry its own sovereignty with the sovereignty demanded by aboriginal “nations,” sovereignty whose ambit has recently been expanded by the Supreme Court of Canada in its Tsilhqot’in decision.
Whether leading or following – a case could be made either way – the court itself has moved. In a previous ruling, written by then-chief justice Antonio Lamer, the court provided a kind of sliding scale of aboriginal title with rights attached depending on how strong the claim. The judge outlined a long list of developments – including hydro, farming, forestry and roads – that the government could pursue, provided it consulted with aboriginal people.
Beverley McLachlin, now Chief Justice, dissented in that decision, arguing (and this sentence obviously does not do justice to her complete reasoning) that only negotiations based on treaties between aboriginal groups and the Crown could authorize an infringement on aboriginal title.
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